Introduction

The Board of Immigration Appeals (BIA) decision in the Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) [PDF version] is one of the most enduring and significant decisions regarding immigration benefits in the context of marriage.1 In this decision, the Board made clear that when a U.S. citizen files a petition for an alien based on the alien’s marriage to the petitioner, the burden rests with the petitioner to establish eligibility for the benefit sought. Specifically, in Matter of Brantigan, the Board held that where there is an absence of proof that a previous marriage of the petitioner was legally terminated, the petitioner bears the burden of affirmatively establishing that the previous marriage in question had been legally terminated.

In deciding Matter of Brantigan, the Board spent most of its decision discussing and analyzing two District Court decisions on the issue arising in the jurisdiction of the United States Court of Appeals for the Ninth Circuit. Both of the Ninth Circuit decisions dealt with the validity of marriages of individuals applying for naturalization. The first of these decisions is the Petition of Sam Hoo, 63 F.Supp 439 (N.D. Cal.S.D., 1945) [PDF version]. The second of these decisions is the Petition of Lujan, 144 F.Supp 150 (D.C. Guam, 1956) [PDF version].

In this article, we will examine the Matter of Brantigan and the two cases it relies upon: Petition of Sam Hoo and Petition of Lujan. Furthermore, we will look closely at another important and related BIA precedent decision titled the Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957). Please see our article on establishing that a previous marriage is bona fide for a discussion of some related issues to those in Matter of Brantaglin [see article]. Furthermore, please see the following United States Citizenship and Immigration Services (USCIS) document for precedent decisions that cite to Petition of Sam Hoo and/or Petition of Lujan [PDF version].

Discussion: Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966)

The precedent Matter of Brantigan arose based on a motion to reopen proceedings by the petitioner after the Board had denied his petition for his wife a few months prior.

The petitioner was a native of the Philippines and a naturalized citizen of the United States. He sought non-quota status for his wife, a native and citizen of the Philippines, on the basis that she was the immediate relative (in this case, spouse) of a U.S. citizen. The parties had married almost one year before the issuance of the precedent decision in Matter of Brantigan.

The petitioner had been previously married. In lieu of providing definitive evidence that his previous marriage had been legally terminated, the petitioner instead relied upon the fact that his marriage to the petition beneficiary had been deemed to be valid under California law.

In the initial non-precedent decision in Matter of Brantigan, the Board relied on decision of the District Court for the Northern District of California, Southern Division, in Petition of Sam Hoo in denying the petition on the basis that the petitioner failed to establish that his previous marriage had been legally terminated.

In Petition of Sam Hoo, an alien seeking naturalization argued that, because California recognized his marriage to a U.S. citizen, the burden shifted to the government to prove that his previous marriage had not been legally terminated (and by effect, that his current marriage was invalid). In Sam Hoo, the District Court held that the burden of proof for an applicant for naturalization never shifts to the government. In a significant point with regard to Matter of Brantigan, the District Court held that, because the petitioner for naturalization had not provided satisfactory evidence of the termination of his previous marriage, he had not sustained his burden for showing that his current marriage was valid, notwithstanding that it was recognized by California.

In the initial Brantigan decision, the Board followed the District Court in Sam Hoo, finding that the recognition of the petitioner’s marriage in California did not create a presumption that his previous marriage had been legally terminated. In short, the Board applied the principles of Sam Hoo — which dealt with naturalization — to situations in which a U.S. citizen petitioner is seeking to accord preference status to a spouse.

Interestingly, in the initial Matter of Brantigan decision, the Board suggested that it would entertain a motion to reopen by the petitioner in the event that he secured a declaratory judgment affirming the validity of his marriage.

In the precedent Matter of Brantigan, the petitioner’s motion to reopen was granted notwithstanding the fact that his counsel indicated that the petitioner could not procure a declaratory judgment in the California courts as to the validity of his marriage. Instead, the petitioner sought to distinguish his case from that of Petition of Sam Hoo based on the fact that the petitioner in Petition of Sam Hoo had known that his previous wife had been alive within the five-year period prior to his marrying a U.S. citizen.

However, the Board held that the District Court decision in Petition of Sam Hoo went further than the petitioner’s argument indicated. In Petition of Sam Hoo, the District Court had noted that it was entirely possible that, were the validity of the naturalization applicant’s marriage challenged by an interested party in California State court, the marriage would be sustained. The District Court noted, however, that the presumptions in California law are different than those in the naturalization laws due to the state’s interest in matters such as legitimacy, inheritance, and relationships that are dependent on marital status. The Court held that California’s laws and interests relating to marriage must give way to the naturalization laws, for allowing for a presumption of validity under California law to apply in the naturalization context could create an opening for immigration marriage fraud. Accordingly, the District Court held that the burden of proof in the naturalization context never shifts from the petitioner for citizenship to the Government.

The Board in Matter of Brantigan also discussed the decision of the United States District Court for the District of Guam (also part of the Ninth Circuit) in Petition of Lujan. There, the Guam District Court denied a naturalization petition filed by a national of the Philippines who had ordered a mail-order divorce in Mexico from her first husband before marrying her U.S. citizen husband. The petitioner, similar to the petitioner in Petition of Sam Hoo, argued that the Guam District Court should follow California law (her re-marriage took place in California) and Guam law in presuming that her marriage to the U.S. citizen was valid. She also argued that placing the burden on her to prove that her California-recognized marriage was valid might involve proof of a negative. However, the District Court in Petition for Lujan followed the Petition of Sam Hoo and held that the issue of whether the marriage was valid for proving that the petitioner was married to a U.S. citizen for immigration purposes was distinct from whether the marriage was valid in other contexts for purposes under state law.

One key point in Matter of Brantigan was that the Board also applied the principles set forth by the District Courts for naturalization proceedings where the validity of a marriage is pertinent to visa petition proceedings. The Board stated:

In visa petition proceedings, the burden of proof to establish eligibility sought for the benefit conferred by the immigration law rests upon the petitioner.

Accordingly, in Matter of Brantigan the Board did not find that the petitioner had sustained his burden of establishing that his marriage to the petition beneficiary was valid. However, it reopened proceedings in order that adjudicators could consider testimony from the petitioner’s daughter from the previous marriage.

Related Prior Case: Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957)

Before examining the two District Court decisions relied upon in Matter of Brantigan, it is worth examining in brief the Board’s prior precedent decision in Matter of T-S-Y-, another heavily influential decision on the burden of proof for immigration benefits. The Board referenced Matter of T-S-Y- in a footnote to Matter of Brantigan.

The Matter of T-S-Y- concerned a native and citizen of China who was placed in deportation proceedings for overstaying his 29-day period of admission as a seaman. He sought to qualify for preexamination under the immigration laws in effect at the time of Matter of T-S-Y-. In order to qualify, the respondent had to establish that he would be eligible to promptly obtain an immigrant visa. He based his application for preexamination on the fact that he had married a U.S. citizen, whom he had married one week prior to his scheduled departure from the United States. In theory, this would have allowed him to be sponsored for a visa as an immediate relative without being subject to quotas.

However, the validity of the respondent’s marriage was called into question by the existence of his prior marriage to a woman in China. In a prior order in the case, the Board found that the evidence offered by the respondent relating to the alleged termination of his prior marriage was insufficient.

Before the Board, the respondent argued that his marriage to the U.S. citizen had a “presumption of validity” which outweighed any presumptions that his prior marriage had not been legally terminated. He appealed specifically to the fact that New York had recognized his marriage. However, the Board distinguished the issue of determining whether his marriage qualified him from preexamination from whether his marriage was valid under the laws of New York. In a key passage, the Board stated:

However, the respondent is seeking the privilege of preexamination and the burden upon him to show his eligibility therefor.

Tying our cases together, the Board in Matter of Brantigan noted that “[t]he facts in [the Matter of T-S-Y-] are almost identical with those present in Petition of Sam Hoo…” We will discuss the facts of Petition of Sam Hoo in the next section.

Matter of T-S-Y- thus stands with Matter of Brantigan as one of the most significant administrative precedent decisions regarding the burden of proof for seeking immigration benefits. Although both involve similar facts, Matter of T-S-Y- is distinguishable in that it concerned the validity of a marriage in the context of seeking immigration relief instead of the validity of marriage in the context of an immigrant visa petition (Matter of Brantigan) or a petition for naturalization (Petition of Sam Hoo and Petition of Lujan).

Similarly to Matter of Brantigan, the Matter of T-S-Y- establishes principles for the burden of proof in seeking immigration benefits that extends to cases having nothing to do with marriage.

Petition of Sam Hoo, 63 F.Supp 439 (N.D. Cal.S.D., 1945)

In this section, we will examine the facts in Petition of Sam Hoo and how the District Court’s analysis informed the Board’s decisions in Matter of Brantigan and Matter of T-S-Y-.

Before examining the facts of Petition of Sam Hoo, it is important to understand the stakes. The District Court explained that if the petitioner’s marriage to a U.S. citizen was indeed valid, he would be eligible for naturalization. If his marriage was found to be invalid, he would be ineligible for naturalization under the naturalization laws in existence at the time.

The facts of the case were as follows:

The petitioner married a U.S. citizen in California in 1937 and had two children as a result of the marriage;
The petitioner had apparently married for the first time in China in 1914, and had two children in that marriage;
The petitioner’s first wife died in 1928 or 1929;
After the death of the petitioner’s first wife, he married a Chinese national before returning to the United States in 1930, where he resided from that point forward;
The petitioner’s affidavit indicated that his second wife had appeared in 1932 before elders in her village to publicly declare that she was no longer married to the petitioner, and she subsequently married a different individual in China and “lived as man and wife with him”;
The petitioner’s second wife died in 1938, one year prior to the petitioner’s marriage to his U.S. citizen spouse; and
Neither of the signers of the affidavits submitted by the petitioner appeared in court and the petitioner did not show that his second wife’s apparent appearance before village elders to announce her divorce had legal effect.

The Naturalization Service in effect at the time recommended approval of the petitioner’s naturalization application. Its argument was that the fact that the petitioner’s marriage was recognized as valid under California law satisfied his burden of proof for establishing that the marriage was valid for naturalization purposes.

However, the District Court would disagree. The District Court noted that the petitioner failed to prove that his marriage to his second wife had been annulled or dissolved. Furthermore, he failed to prove that he had knowledge that his previous wife was not alive prior to his marriage to his U.S. citizen spouse (in fact, the affidavits indicated that she was alive when he married his U.S. citizen spouse and that he had known that she was alive). It is worth recalling that in Matter of Brantigan, the petitioner sought to distinguish his case from Petition of Sam Hoo on the second point.

The District Court acknowledged that the petitioner’s marriage may survive scrutiny under California law. However, it explained that the presumptions in State law are different than those in the naturalization laws. It cited to the Supreme Court decision in United States v. Schwimmer, 279 U.S. 644, 649 (1929), overruled in part [PDF version], to the effect that the Court in Schwimmer held that, because of the value of naturalization, statutes regarding qualifications and requirements should be construed in favor and support of the government.

Because the District Court found that the petitioner had failed to submit satisfactory evidence to establish the validity of his marriage for purpose of naturalization, the District Court denied his petition for naturalization.

Petition of Lujan, 144 F.Supp. 150 (D.C. Guam 1956)

While reaching the same rule as the District Court in Petition of Sam Hoo, the Petition of Lujan involved a different set of facts. The facts are as follows, set forth by the Guam District Court:

The petitioner sought naturalization under section 319(a) of the Immigration and Naturalization Act (INA) (note that 319(a) stands for the same provision under current laws) on the basis of her claim that she was the lawful wife of a U.S. citizen;
The petitioner, a citizen of the Philippines, married a Filipino man in the Philippines 1948;
Shortly thereafter, the petitioner (from the Philippines) filed an action for divorce with a Mexican court on grounds of incompatibility and cruelty;
The Mexican court granted the divorce decree in 1951, and the decree stated that the petitioner had testified in the divorce action by deposition and that the defendant was served process in the Philippines;
Despite the fact that neither the petitioner nor her allegedly former Filipino husband had ever been to Mexico, the mail order divorce decree from the Mexican court purported to grant an absolute divorce;
In 1951, the petitioner was admitted to the United States for temporary residence and married a U.S. citizen in Guam, and in 1952 she was admitted as a lawful permanent resident;
In 1956, based on her purported marriage to a U.S. citizen, the petitioner filed for naturalization; and
The naturalization examiner recommended that the application for naturalization be denied on the basis that the petitioner remained the legal wife of her first husband because her divorce was invalid.

The Guam District Court would ultimately agree with the naturalization examiner. Interestingly, in this case, the District Court would appeal in part to the laws of Guam regarding divorce in finding that the petitioner’s purported divorce was invalid for naturalization purposes.

Citing to the Supreme Court decision in Bell v. Bell, 181 U.S. 175 (1901) [PDF version], the District Court held that power to grant divorce is based on domicile. It noted that this principle was familiar to the framers of the Constitution.

Upon examining the divorce laws of Guam — which had been taken in large part from those in California — the District Court concluded that the manner in which the petitioner obtained her divorce from her first husband would not have been valid under Guam law. The primary reason for this is that Mexican courts would not have been considered to have jurisdiction over divorce claims brought by individuals who did not live in Mexico, much less have any other connection to Mexico. For example, see Muir v. United States, 93 F.Supp. 939 (N.D. Cal.S.D., 1950) [PDF version], wherein a California District Court found that a divorce from a Mexican court obtained by residents of California was invalid (under nearly identical statutes to those of Guam at the time).

Furthermore, the District Court explained that the petitioner did not present any evidence to establish that her divorce was recognized under the law of the Philippines, where she was actually domiciled at the time. The naturalization officer reported that the Philippine Consulate stated that the only grounds for divorce that the Philippines recognized were adultery and concubinage, and it recognized foreign divorces only if they were obtained on those grounds (note this refers to the laws in effect at the time).

Similarly to the petitioner in Petition of Sam Hoo, the petitioner in Petition of Lujan argued that the District Court should consider that California law would recognize her marriage to her second husband as sufficient proof for purpose of meeting her burden under the naturalization laws. She argued that placing the burden on her “might involve proof of a negative.” The petitioner recognized that Petition of Sam Hoo was contrary to her argument but did not seem to have otherwise attempted to distinguish her case.

Ultimately, the District Court held that the petitioner had not sustained her burden of establishing that her previous marriage had been legally terminated, and by effect, that the marriage upon which her naturalization application was based was valid. Following Petition of Sam Hoo, the District Court explained that the fact that the petitioner’s marriage may be found to be valid in other proceedings (such as under State law) did not render it valid for naturalization purposes.

Conclusion

Both Matter of Brantigan and Matter of T-S-Y- are two of the most influential BIA precedent decisions. By examining the facts of the district court decisions upon which both relied, one can glean a better understanding of the Board’s reasoning, which is still often cited to to this day.

Specifically in the marriage context, these decisions make clear that the petitioner for immigration benefits involving marriage always bears the burden of establishing the validity of the marriage. This applies whether the individual is seeking immigration relief, to confer benefits, or to procure naturalization. The standard in the immigration context may be higher than in other contexts. These precedents show that in seeking immigration benefits, things that may be taken for granted can prove problematic. Those seeking benefits are strongly advised to consult with an experienced immigration attorney.

As we noted, Matter of Brantigan and Matter of T-S-Y- are often cited to regarding the burden of proof for immigration benefits in general. Applicable statutes and regulations will generally make clear what a petitioner or applicant for immigration benefits must prove in order to establish eligibility for the benefits. In general, the burden lies with the petitioner unless otherwise noted.

Petition of Sam Hoo and Petition of Lujan themselves have not been cited to often subsequent to Matter of Brantigan, which took their principles and expanded upon them.2 However, the Board’s reliance on them give both status greater than mere footnotes in the history of immigration law.

  1. According to Westlaw (accessed on July 13, 2017), Matter of Brantigan has been mentioned or cited to in eight circuit and district court decisions since 2015, despite now being over 50 years old. In that same period, it has been cited to or mentioned in 403 administrative decisions. It is important to note that Matter of Brantigan is often relied upon for the general principle that the burden for establishing eligibility for a benefit sought in general rests with the petitioner (meaning it is often applicable outside of the marriage context). For example, see footnote 2 of 2 USCIS-PM J.6 [PDF version], which cites to Matter of Brantigan regarding the requirement that a petitioner for a nonimmigrant bears the burden of proving eligibility for the benefit sought.
  2. But see: Dizon, Shane and Nadine K. Wettstein. “sec. 14:192. Eligibility as dependent on existence of valid marriage.” 3 Immigration Law Service 2d. (May 2017 update). Retrieved from Westlaw.